Opinion
No. 2 CA-CR 2019-0042-PR
06-06-2019
THE STATE OF ARIZONA, Respondent, v. MICHAEL WILLIAM MCKERLIE, Petitioner.
Michael William McKerlie, Florence In Propria Persona
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e).
Petition for Review from the Superior Court in Pima County
No. CR20141915001
The Honorable Howard Fell, Judge Pro Tempore
REVIEW GRANTED; RELIEF DENIED
Michael William McKerlie, Florence
In Propria Persona
MEMORANDUM DECISION
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Judge Vásquez concurred.
BREARCLIFFE, Judge:
¶1 Michael McKerlie seeks review of the trial court's order summarily dismissing his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that order unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). McKerlie has not shown such abuse here.
¶2 After a jury trial, McKerlie was convicted of five counts of sexual exploitation of a minor under the age of fifteen, stemming from his possession of child pornography. The trial court sentenced him to consecutive prison terms totaling 140 years. We affirmed his convictions and sentences on appeal. State v. McKerlie, No. 2 CA-CR 2015-0305 (Ariz. App. Mar. 14, 2017) (mem. decision).
¶3 McKerlie sought post-conviction relief, and appointed counsel filed a notice stating she had reviewed the record but found no "arguably meritorious" claims to raise under Rule 32. McKerlie then filed a pro se petition for post-conviction relief, arguing the state had failed to present any evidence he intended to use the images for "sexual stimulation" and, thus, the images were not "exploitive exhibition" of a minor under A.R.S. §§ 13-3553(A)(2) and 13-3551(5). He additionally argued the definition of "exploitive exhibition" is unconstitutionally overbroad. He asserted that trial counsel and appellate counsel had been ineffective in failing to raise these issues and that trial counsel should have argued at sentencing that he could not be sentenced under A.R.S. § 13-705 because the state did not prove the child depicted in the images was an "actual child." The trial court summarily denied relief, and this petition for review followed.
¶4 On review, McKerlie again attacks the sufficiency of the evidence, claims the definition of "exploitive exhibition" is unconstitutionally broad, and asserts his enhanced sentences are improper. He also asserts his trial and appellate counsel were ineffective. First, except
for his claim of ineffective assistance, these claims could have been raised on appeal. Accordingly, he has waived them and cannot raise them in this proceeding. Ariz. R. Crim. P. 32.2(a)(3). We therefore address these issues only insofar as they are relevant to his claim of ineffective assistance of counsel.
¶5 "To state a colorable claim of ineffective assistance of counsel, a defendant must show both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced the defendant." State v. Bennett, 213 Ariz. 562, ¶ 21 (2006); see also Strickland v. Washington, 466 U.S. 668, 687 (1984). McKerlie asserts, for the first time on review, that trial counsel was ineffective in failing to challenge his indictment. But we do not address claims not first raised below. See State v. Ramirez, 126 Ariz. 464, 468 (App. 1980).
¶6 McKerlie also argues trial counsel was ineffective in failing to argue that his possession of the images was "legal" and appellate counsel was ineffective for failing to raise his challenges to the sufficiency of the evidence and the constitutionality of § 13-3551(5). These arguments apparently rest on his contention that the state was required to prove he possessed the images for the purpose of sexual stimulation.
¶7 McKerlie's argument seizes on language in State v. Chandler, in which this court stated that, under the definition of "exploitative exhibition" in § 13-3551(5), "'the purpose of sexual stimulation of the viewer' means that the viewer intends the photograph be used for sexual stimulation, rather than that the minor intends to sexually stimulate the viewer." 244 Ariz. 336, ¶ 7 (App. 2017) (quoting § 13-3551(5)). The state had charged Chandler with sexual exploitation of a minor for secretly filming his teenage daughters while they were using the toilet, bathing, and shaving their genitals. Id. ¶ 2. Chandler admitted to police that he had thought about masturbating while watching the videos. Id. ¶ 8. He argued, however, there was insufficient evidence to establish exploitive exhibition because the minors did not have the purpose of sexually stimulating the viewer. Id. ¶ 5. Although the court did state the focus was not on the child victim but on the viewer, the court further stated, "[i]nterpreting the statute in this manner will not lead to criminalization of innocent pictures or videos in which a child happens to be nude. The state is still required to prove that the photographer took the picture for the purpose of 'sexual stimulation.'" Id. ¶ 8.
¶8 The facts of Chandler are distinct from those presented here. There, the defendant was both the creator and the viewer of the depictions. In that context, we held the relevant question is whether the viewer intended the depiction be used for sexual stimulation in order to make it clear that it is immaterial whether the minor intended to cause sexual stimulation. However, the appropriate inquiry when, as here, the creator and viewer are different people is whether the photographer, recorder or creator of the material created it "for the purpose of sexual stimulation of the viewer." § 13-3551(5). In such a case, the analysis must concentrate on the content of the depiction, not on the defendant's subjective purpose for possessing it. The state must prove the photographer or the recorder of the depiction created it for the purpose of sexually stimulating the viewer, not that the viewer had the depictions for his own sexual stimulation.
¶9 As McKerlie seems to recognize, his interpretation would mean that innocuous images of nude children in medical journals or family photographs would be converted to images of sexual exploitation of a minor if a person collected them for sexual stimulation. This does not comport with the intent of the statute, which is to protect children who are the "subjects in the production of pornographic materials." 1978 Ariz. Sess. Laws, ch. 200, § 2; see State v. Gates, 182 Ariz. 459, 463 (App. 1994) ("[D]efendant's intent cannot create a 'lewd exhibition' out of otherwise innocent activity by children.").
¶10 Because the state was not required to show that McKerlie intended to use the images for sexual stimulation, his claim that trial and appellate counsel were ineffective for failing to raise that and related arguments necessarily fails. His remaining claims are waived and cannot be raised in this proceeding. Thus, although we grant review, we deny relief.